TB9-35490

RAD File / Dossier de la SAR : TB9-35490 TB9-35491 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 26, 2021 Date de la décision Panel L. Krajcovic Tribunal Counsel for the persons who are the subject of the appeal Nastaran Roushan Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (Principal Appellant) and XXXX XXXX (Associate Appellant) are citizens of China. They appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees. BACKGROUND [3] The Appellants are mother and daughter. They fear that, upon return to China, family planning officials will sterilize the Principal Appellant because she violated the family planning policy. The Associate Appellant fears repercussions because of her mother's violation of the family planning policy. [4] The Associate Appellant is the daughter of the Principal Appellant's first marriage. The Principal Appellant and her second husband were married on XXXX XXXX, 2012. The Principal Appellant's husband has two daughters from a previous relationship. [5] The Appellants' allegations are as follow. In February 2014, the Principal Appellant was diagnosed with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX was removed. The Principal Appellant was told to take birth control pills and attend pregnancy checkups. In August 2014, the Principal Appellant and her husband decided that they wanted another child, so the Principal Appellant stopped taking her birth control pills. In April 2015, the Principal Appellant attended the family planning office for a pregnancy check, which was negative. [6] On June 3, 2015, family planning officials attended the Appellants' home, conducted a pregnancy test and discovered that the Principal Appellant was pregnant. She was forced to undergo an abortion, following which she was told that she should have been sterilized at that time, but could not be due to medical complications related to the abortion. [7] The Principal Appellant was given a fine notice and ligation notice requiring her or her husband to be sterilized on June 15, 2015. On June 10, 2015, the Principal Appellant and her husband went into hiding. On June 15, 2015, the Principal Appellant's mother called to advise her that family planning officers attended the Appellants' home and provided another ligation notice requiring them to undergo the procedure before June 30, 2015. The Principal Appellant's mother also advised the Principal Appellant and her husband that their daughters were suspended by their schools due to the family planning policy violation. [8] The Appellants and the Principal Appellant's husband and stepdaughters applied for United States (US) visas. On XXXX XXXX XXXX 2015, the Appellants and the Principal Appellant's older stepdaughter travelled to the US. They arrived in Canada on XXXX XXXX, 2015. The Principal Appellant's husband and her younger stepdaughter arrived in Canada on XXXX XXXX, 2015. The Appellants signed their Basis of Claim (BOC) forms on September 20, 2015. [9] The Principal Appellant and her husband separated while in Canada, following criminal charges against the Principal Appellant related to an assault against the husband and younger stepdaughter. Their claims were disjoined. [10] On December 22, 2015, the Minister of Public Safety filed an intention to intervene based on the criminal charges against the Principal Appellant. [11] On March 8, 2018, the Principal Appellant amended her BOC form and narrative.1 The amendment refers to abortions the Principal Appellant underwent prior to the 2015 family planning issues. The Principal Appellant states that she did not mention these abortions because she has tried to erase them from her memory. In her amendment, the Principal Appellant states that she became pregnant in 1999 and, after she failed to show up for her IUD check, the government suspended her family's employment and benefits, so she had no choice but to have an abortion when she was six months pregnant. The Principal Appellant states she became pregnant again around 2003. She states that she was afraid and attended the hospital for an abortion on the 49th day of the pregnancy. The Principal Appellant states that she became pregnant again around 2005, at which time the family planning policy was being strictly enforced. She states that she took a drug to induce an abortion. Following this, her husband's family insisted that he and the Principal Appellant divorce because they thought that she did not want to give birth to a boy, which would end the family. The Principal Appellant submits that, following her divorce, she became pregnant while dating a soldier who was a Communist Party official. She states that, because of his position, she would have had to submit to monitoring of herself and her family, which she could not accept. She had another abortion. [12] The amended narrative also refers to problems that the Principal Appellant's family in China have had because of her violation of the family planning policy. [13] There were nine sittings of the Appellants' claims, the first being November 1, 2018 and the last July 16, 2019. The Principal Appellant was designated a vulnerable person and accommodations were put into place at the hearing, including change of order of questioning, refraining from asking detailed questions about the abortions, providing time for the Appellant to respond to questions, and granting breaks when needed. On November 20, 2019, the RPD rejected the claim on the basis of credibility. [14] The Appellants appealed to the Refugee Appeal Division (RAD). The RAD found the Appellants credible but that they did not face a forward-looking risk due to changes in country conditions. [15] The Appellants sought leave for judicial review. The appeal was allowed on consent and the matter was returned to the RAD for reconsideration by a different member. [16] The Appellants submit that the RPD erred in its assessment of their credibility, the psychiatric report and the corroborating documents, in addition to not understanding the objective basis of the claim. [17] The issues on appeal are whether the RPD erred in its assessment of the Appellants' credibility, the psychiatric report and the corroborating documents, and whether the Appellants have a well-founded fear of persecution upon return to China. NEW EVIDENCE [18] On January 3, 2021, the RAD received written submissions from the Appellants based on updates to the National Documentation Package (NDP) Package for China dated October 30, 2020.2 The submissions also address repercussions to the Associate Appellant because of the Principal Appellant's violation of the family planning policy. [19] The submissions regarding the updated NDP are admitted into evidence. The RAD is obligated to consider the most recent NDP and I have done so in these reasons. The submissions regarding the Associate Appellant were already provided to the RPD in post-hearing submissions, so they already form part of the record. ORAL HEARING [20] The Appellants do not request an oral hearing. As I have admitted new evidence, I am obligated to consider whether an oral hearing should be held pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). Subsection 110(6) states that the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.3 As the updated NDP does not raise a serious issue with respect to the Appellants' credibility, no hearing can be held in accordance with subsection 110(6) of the IRPA. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [21] The RAD applies a standard of correctness for questions of fact, mixed fact and law, and law. The RAD may defer to the RPD in assessing findings involving the credibility of oral testimony if it finds that it had a meaningful advantage in the circumstances.4 In this appeal, I find that the RPD did not have a meaningful advantage. ANALYSIS [22] In deciding this appeal, I have considered the Chairperson's Gender Guideline.5 The XXXX XXXX establishes the Principal Appellant's XXXX issues [23] The RPD found that neither the designation as a vulnerable person nor the various reports regarding the Principal Appellant's mental health offered a reasonable explanation why she could not recall details as they related to her claim. [24] The RPD states that the psychiatric report was reliable based on the psychiatrist's qualifications, authority to diagnose and methodology, so gave it some weight. However, the RPD found the report flawed as it omitted information regarding the number of abortions the Principal Appellant underwent and it was uncertain what information was before the psychiatrist. The RPD gave the XXXX XXXX little weight on the basis that it relied on the Principal Appellant's self-reporting of what occurred in China, which she found not reliable given the Principal Appellant's XXXX problems; that the original report was based on missing information which, despite the psychiatrist's addendum, had to have negatively impacted the psychiatrist's reliance upon the Principal Appellant's evidence; and that the psychiatrist's lack of follow up was somewhat concerning. [25] The Appellants submit that the RPD's findings regarding the psychiatric evidence are unintelligible. The Appellants submit that it is unclear whether the RPD relied on the report as she simultaneously found that it was reliable and not reliable. [26] The Appellants submit that the reasons provided for the unreliability of the report are similarly incomprehensible. The Appellants submit that, after the report was completed, the XXXX was provided with the additions to the Principal Appellant's narrative regarding the additional abortions, following which the XXXX provided an addendum to her report, stating that the additions did not impact her observations and conclusions. The Appellants submit that the RPD had no basis for concluding that the additional forced abortions would have changed the XXXX conclusions while simultaneously concluding that the report is reliable based on her qualifications, authority to diagnose and methodology. The Appellants submit that the XXXX failure to rely on other assessments and provide the report to other physicians does not detract from the reliability of the report. [27] The Appellants submit that they are relying on the reports to provide support regarding the Principal Appellant's current mental health and its impact on her cognition, which is not a determination that the RPD can make as it does not have the expertise to do so. The Appellants refer to Supreme Court of Canada jurisprudence for the proposition that it is erroneous to discredit a psychiatric report because it is based on a patient's account of events as rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. [28] The Appellants submit that the RPD acknowledged that the Principal Appellant had XXXX issues, stating she granted the claimant consideration as it relates to her recollection, and claims to have taken various reports into account, then provides opaque conclusions about why her XXXX issues and the reports do not provide a justifiable rationale for the alleged omissions and contradictions that result in negative credibility findings. The Appellants submit that the RPD ignored scientific reports regarding the impact of trauma on XXXX and that XXXX disturbances are predominant in the presentation of XXXX XXXX XXXX XXXX XXXX XXXX XXXX) and are part of the diagnostic criteria. [29] I find that the RPD erred in its assessment of the XXXX XXXX. I have reviewed the XXXX XXXX6 and addendum as part of my independent assessment.7 The psychiatrist diagnoses the Principal Appellant with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. It refers to the Principal Appellant's symptoms as including "significant avoidance of thinking about the past to the point of wanting to erase her traumatic memories, inconsistent recall of her traumatic past, severe emotional and physical distress when reminded of the past; difficulty focusing and memory issues."8 [30] I disagree with the RPD's reasons for finding the report unreliable. The Principal Appellant's self-reporting, the RPD's finding regarding the BOC amendments, and the alleged lack of clarity regarding what information was before the XXXX are not sufficient reasons to undermine the XXXX diagnosis. I agree with the Appellants' submissions that the report is submitted to provide support regarding the Principal Appellant's current XXXX health and its impact on her cognition. I find the RPD's statement that it granted the Principal Appellant consideration as it relates to her recollection difficult to reconcile with its finding that the report does not reasonably explain why she could not recall details as they relate to her claim. [31] I accept the XXXX diagnosis of the Principal Appellant having severe XXXX, XXXX XXXX XXXX XXXX XXXX XXXX, and her symptoms of inconsistent recall of her past, difficulty focusing and memory issues. I have considered the Principal Appellant's diagnosis and symptoms in my assessment of her credibility. The RPD relied on peripheral omissions and contradictions [32] The RPD noted inconsistencies in the evidence regarding who the Appellants travelled with from China and where they went in the US and noted that the Principal Appellant was unable to identify who the person was that was listed as a relative on her US visa application. The RPD made a negative credibility finding based on the circumstances of the Appellants' knowledge of the Associate Appellant's suspension from school. The RPD noted that the Principal Appellant could not recall certain information that was straightforward, including when she sought refugee protection and what information was provided at that time. The RPD noted that the Principal Appellant could not recall much of her history and what happened in China. [33] The Appellants submit that the RPD fixated on the Appellants' failure to remember the city in the US to which they travelled on route to Canada. The Appellants submit that the failure to remember a passing city is immaterial to the claim of forced abortion and future sterilization in China and that the city in the US where the Appellants visited is not relevant to their fear should they return to China. The Appellants submit that the method by which they learned that the Associate Appellant was suspended from school is peripheral to their refugee claim. The Appellants submit that the Principal Appellant's failure to remember the exact date that she made her claim, three to four years later, has no impact on the reason why she left China and her future risk should she return. The Appellants submit that the information in her forms is relevant insofar as it is materially inconsistent with her evidence, whereas her lack of memory of the information it contains in and of itself is irrelevant. [34] I find that the RPD erred by making credibility findings based on issues that are peripheral to the claim. The findings regarding who the Appellants travelled with to Canada, the city where they stayed in the US, how they learned that the Associate Appellant was suspended from school, the date upon which they filed their refugee claims and whether the Principal Appellant remembered what information was provided at the time she made her claim are immaterial to the central issue of whether there is a serious possibility that the Principal Appellant faces forced sterilization upon return to China. As a result, I set these findings aside. The BOC omissions are not sufficient to undermine the Appellants' credibility [35] The RPD found that the trauma experienced by the Principal Appellant did not explain why she did not provide the information regarding multiple abortions in her original BOC narrative. The RPD also found that the Principal Appellant omitted from her narrative that her husband had paid a social compensation fee for his younger daughter in 2015. [36] The Appellants submit that the RPD did not address their argument that it was the final forced abortion that was material to the claim as this was the event that resulted in the ligation notice and caused them to flee China. The Appellants submit that the previous forced abortions are only relevant to the issue of compelling reasons because they provide details of the extent of persecution over two decades in China and that it is not reasonable to expect her to be aware of the discrete doctrine of compelling reasons and to document two decades of forced abortions when describing the events precipitating her decision to leave China. The Appellants submit that the RPD ignored the Principal Appellant's stated desire to forget her past trauma and the impact on her mental health and criticized her testimony as evolving. [37] The Appellants submit that they provided the transcript of the interview where the Principal Appellant's husband discussed the social compensation fee payment and therefore that any omission is immaterial as this information was before the RPD. The Appellants submit that whether the Principal Appellant's husband was required to pay the social compensation fee does not change the fact that the couple had three children cumulatively, that the Principal Appellant had become pregnant with their fourth child before the changes to the family planning policy and that the Principal Appellant was forced to undergo an abortion in June 2015 and is required to undergo sterilization in the future. [38] While I disagree with the Appellants' submission that the Principal Appellant's previous abortions are only relevant to the issue of compelling reasons, as these are evidence of past persecution, I agree that the Principal Appellant included the June 2015 forced abortion in her BOC narrative, which was the material event that led to the ligation notice and her fleeing China. Further, although the previous abortions were not included in her original narrative, prior to the hearing, the Principal Appellant amended her narrative to include these events. I accept that the Principal Appellant's past trauma and XXXX issues provide an explanation as to why the previous abortions and payment of the social compensation fee were not included in her narrative. Although these omissions raise some concern regarding the Appellants' credibility, they are not sufficient to undermine their allegations. Further, I note that the mandatory sterilization and payment of the social compensation fee are supported by numerous corroborating documents. I turn to this now. The corroborating documents are genuine and establish the Appellants' risk The family planning booklet9 [39] The RPD found the family planning booklet not genuine given the errors contained in it. The RPD noted that the booklet lists the Principal Appellant's younger stepdaughter as being out of plan and living with the Appellants. The RPD noted that this was a problem as, in his hearing, the Appellant's husband had testified that his younger daughter was listed on her mother's hukou and was not residing with them. The RPD found that the Principal Appellant's stepdaughter was not illegal or out of plan as this was not supported by the evidence provided by the Principal Appellant's husband at his hearing. The RPD found the Principal Appellant's explanation that her younger stepdaughter lived with them after marriage and was added due to the census not credible. [40] The RPD found that the family planning booklet lacked any security details and that it could not give it weight as the Principal Appellant could not provide the provenance of the document other than that her brother sent it. The RPD also noted that this was the only medical booklet provided. The RPD found the document not genuine and rejected it as evidence that the Principal Appellant was forced to undergo an abortion in June 2015. [41] The Appellants submit that the family planning booklet has stamps, which the Federal Court has stated is a security feature. The Appellants submit that the family planning booklet was submitted for forensic examination and that, although inconclusive, the comments indicate it is genuine as the report states that the stamps were not machine made as there are variations in their impression characteristics. The Appellants submit that the RPD is not permitted to compare the testimony of a person whose credibility is debunked to that of the Principal Appellant and conclude that the inconsistencies lead to the conclusion that the Principal Appellant is not credible. [42] I find that the RPD erred in determining that the family planning booklet is not genuine. I have reviewed the family planning booklet as part of my independent assessment. The family planning booklet refers to the Principal Appellant having an IUD inserted in 2012, which was removed in 2014 due to pelvic inflammation.10 It refers to a checkup detecting early pregnancy11 and states "[e]arly pregnancy out of planning, it required remedial measure, abortion" and is dated June 3, 2015, and stamped by XXXX XXXX XXXX XXXX XXXX XXXX XXXX.12 Another page refers to the Principal Appellant undergoing an abortion on June 3, 2015.13 The booklet refers to the Principal Appellant's younger stepdaughter being out of plan14 and to the collection of a social compensation fee.15 [43] I have also reviewed the forensic laboratory report16 which was requested by Minister's Counsel and completed on January 3, 2019 by the Forensic Document Examination Section of Canada Border Services Agency. The report states that the examination disclosed that "what appear to be stamped entries that intersect with handwriting are actual stamped entries, i.e. that they are not reproductions by an office machine process such as ink-jet printing."17 The report also states that the "stamp impressions were examined for their characteristics. The stamp impressions disclosed differing degrees of variation in their impression characteristics."18 Although the report was inconclusive, its observations do not support a finding that the booklet is not genuine. [44] I find that the RPD erred in stating that the family planning booklet lacks any security features. As stated by the Appellants, the booklet contains numerous stamps, which the Federal Court has stated are security features. [45] I disagree with the Appellants' submission that the RPD is not permitted to compare the testimony of the discredited Principal Appellant's husband to the evidence of the Principal Appellant as the husband's testimony in his hearing was in evidence before the RPD. However, I find that caution is necessary in drawing conclusions regarding the credibility of the Principal Appellant based on the testimony of her husband, who was found not credible. I find that the inconsistency between the evidence of the Principal Appellant and her husband regarding where the stepdaughter resided and whether she was out of plan, combined with the Principal Appellant's difficulty in remembering the provenance of the booklet and considering her documented memory issues, not sufficient reasons to undermine the authenticity of the family planning booklet. As a result of the foregoing, I find that the RPD erred in finding the family planning booklet not genuine. [46] The family planning booklet is evidence of the Principal Appellant's 2015 pregnancy and forced abortion and the information contained in the booklet is consistent with Principal Appellant's evidence regarding these events. I find, on a balance of probabilities, that the family planning booklet is genuine and corroborates the Principal Appellant's claim that she underwent a forced abortion in 2015. The family planning notification19 [47] The RPD found the family planning notification not genuine. The RPD found that the family planning notification lacked any security features, that the document was in simple form, printed on plain paper, unsigned, with a red ink stamp and simple letterhead. She noted that such a document could be produced by anyone using basic word processing skills. The RPD noted that the Principal Appellant was unable to provide the provenance of the document, only that her brother sent it by DHL or an unknown individual and that the objective evidence states that fraudulent documents are easily obtained in Guangdong, China. The RPD also found it not credible that there would be a random check by family planning officials when the Principal Appellant had not missed any appointments and was scheduled to attend the clinic on the same day. [48] The Appellants submit that the family planning notification contains a stamp, which the Federal Court has stated is a security feature. Further, the Appellants submit that the RPD does not state why it expects the document not to be in simple form, to be printed on special paper, to require a signature considering it has a stamp, whether it expects the document to have a blue stamp instead of a red one, why it should expect a more elaborate letterhead, and why it would expect the XXXX XXXX XXXX XXXX XXXX to use a different computer application from the rest of humanity. The Appellants also refer to item 5.5 of the NDP, in which an academic who has worked primarily in Shenzhen, Guangdong province states that the appearance of official documents issued to individuals who have violated family planning regulations are different in format almost everywhere. [49] The Appellants refer to Federal Court jurisprudence that states that foreign documents are presumed valid unless there is a reason to doubt their validity and that the availability of fraudulent documents in Guangdong, China does not mean that every document from China is necessarily fraudulent. [50] The Appellants submit that it is because the Principal Appellant did not attend her appointment that the family planning office visited her home on June 3, 3015. [51] I find that the RPD erred in determining that the family planning notification is not genuine. I have reviewed the family planning notification as part of my independent assessment. The notification is dated May 20, 2015 and indicates that the Principal Appellant was to attend for a check up on June 3, 2015. The family planning notification contains a stamp which, as stated above, the Federal Court has stated is a security feature. Further, I agree with the Appellants' submissions regarding the RPD's expectations with respect to the format and content of such a document. The RPD does not provide a source to support its expectations and, contrary to its finding, the Response to Information Request (RIR) referred to by the Appellants supports the wide variance in the appearance of family planning documents in China. I also find that the Appellants' explanation that the family planning office attended their home because the Principal Appellant missed her appointment reasonably explains the RPD's concern that these circumstances were too coincidental. Finally, considering the Principal Appellant's documented memory issues, I find that her difficulty remembering the provenance of the notification should not be relied upon to undermine its authenticity. [52] The content of the family planning notification is consistent with the Principal Appellant's other evidence regarding these events. Considering the foregoing, I find, on a balance of probabilities, that the family planning notification is genuine. The ligation notice20 [53] The RPD noted that the ligation notice states that family planning officials became aware that the Principal Appellant and her husband had three children, yet the husband indicated that his children were registered on their mother's hukou and had birth certificates, so this information would have already been known to Chinese authorities. The RPD also noted that the Principal Appellant's IUD was removed earlier and therefore, contrary to the notice, it was not the failure of the IUD at the time of the notice. The RPD found that, as it had found that the June 3, 2015 events did not occur, the sterilization demand was not credible. [54] The RPD noted that the ligation notice lacked security features, was simple and unsigned. The RPD also noted that the Principal Appellant could not provide the provenance of this document, only that her brother sent it to her either by DHL or an unknown individual. The RPD found that the ligation notice was created solely for purposes of supporting the Principal Appellant's allegations. [55] The Appellants submit that the RPD misconstrued the ligation notice. The Appellants submit that the RPD read the notice as expressing surprise at the existence of the Principal Appellant's husband's second child. The Appellants submit that the statements in the notice are factual and do not express surprise regarding the couple having three children or that the Principal Appellant's IUD measures failed. The Appellants submit that the notice is correct in stating that IUD measures had failed as the Principal Appellant had adverse reactions to the IUD, which had to be removed. [56] I have reviewed the ligation notice as part of my independent assessment. The ligation notice states that, as the Principal Appellant and her husband already had three children and cannot have anymore, one of them needs to "carry out the ligation and birth control measures. Because of the failure of your measures with IUD, which has led to the unplanned pregnancy, it is determined that one of you ... must undergo ligation birth control measure before June 15th, 2015..."21 The ligation notice is dated June 5, 2015 and has a stamp. [57] As stated above, the Federal Court has indicated that a stamp is a security feature. Further, as the ligation notice contains a stamp, a signature may not be necessary. The RPD does not refer to documentary evidence indicating that a signature is required in addition to a stamp. Nor does the RPD refer to documentary evidence to support its finding that a ligation notice would be in a different format. Once again, considering the Principal Appellant's documented memory issues, I find that her difficulty remembering the provenance of the ligation notice should not be relied upon to undermine its authenticity. [58] The RPD relies upon its finding that the June 3, 2015 events did not occur to undermine the authenticity of the ligation notice. However, as outlined above, I find that the RPD erred in determining that the documents related to the June 3, 2015 events were not genuine. [59] I find the RPD's interpretation of inconsistencies in the ligation notice insufficient to undermine its authenticity. The ligation notice stating that the Principal Appellant's failure with IUD measures resulted in the pregnancy is not necessarily inconsistent with the Principal Appellant's evidence that she was unable to continue wearing an IUD due to medical issues and which resulted in it being removed in 2014. I find this apparent inconsistency and the RPD's concern regarding whether Chinese authorities were aware of the husband's children, which is based on the testimony of her husband, who was found not credible, not sufficient to undermine the genuineness of the ligation notice. I find, on a balance of probabilities, that the ligation notice is genuine and corroborates the Principal Appellant's allegation that she is at risk of forcible sterilization. The remaining documents support the Appellants' allegations [60] I have reviewed the remaining documents, including those related to the Expropriation of the Social Compensation Fee, the school suspensions and the letter from the Principal Appellant's brother. These documents are consistent with the Appellants' other evidence. Although I share some of the RPD's concerns regarding the disease diagnosis certificate, the certificate is not probative of the Appellants' risk and I find the concerns related to it insufficient to undermine the documents related to the 2015 forced abortion and the mandatory sterilization. The country conditions evidence supports the Appellants' allegations [61] I have reviewed the country conditions evidence regarding the family planning policy in China. The country conditions evidence supports the Appellants' claim to have been forced to undergo an abortion in 2015 and for sterilization to be mandated. A RIR of the Immigration and Refugee Board of Canada (IRB)22 refers to sources stating that authorities were continuing to impose controls on births in 2015. It refers to the 2015 US Department of State report as stating that China's birth limitation policies retained harshly coercive elements in law and practice.23 It refers to fines being the most common sanction for violation of the family planning policy, but to forced abortions and sterilizations also being imposed.24 Considering the foregoing, I find that the Appellants have established, on a balance of probabilities, their allegations that the Principal Appellant underwent a forced abortion in 2015, following which she was mandated to undergo sterilization. The Principal Appellant's fear is well-founded [62] The RPD found that, as the Principal Appellant would be allowed to have a second child in China, it would be reasonable to expect, on a balance of probabilities, that she would not be required to be sterilized upon return. The RPD found that, even if she were to accept the Appellants' allegations as credible, it was not credible that the Principal Appellant would be subjected to mandatory sterilization as the law allows them to have up to two children in China and there was no persuasive evidence that she would be sterilized as she only has and had one child. [63] The Appellants submit that the RPD failed to understand the objective basis of the claim for persecution which led to an incorrect assessment. The Appellants submit that the claim was based on the violation of the family planning policy prior to January 1, 2016 and whether it would be applied retroactively. The Appellants submit that the changes to the law after January 1, 2016 are not applied retroactively in Guangdong. The Appellants refer to evidence of continued harsh measures in Guangdong for violations before the implementation of the two-child policy. [64] I have reviewed the country conditions evidence regarding the family planning policy in China. Although the country conditions evidence refers to social compensation fees being the most common form of penalty for violation of family planning laws,25 recent country conditions evidence supports the continued implementation of coercive family planning measures following the implementation of the two-child policy. [65] The 2019 Congressional-Executive Commission on China (CECC)26 states that Chinese authorities continued to implement coercive population control policies that violate international standards. It refers to local-level officials reportedly continuing to enforce compliance with family planning policies using method including heavy fines, job termination and coerced abortion. It refers to some local government authorities emphasizing in official reports the need to prevent and control illegal pregnancies and births and instructing family planning officials to carry out the invasive "'three inspections' (intrauterine device (IUD), pregnancy and health inspections) and 'four procedures' (IUD insertion, first trimester abortion, mid-to-late term abortion, and sterilization)."27 [66] The Department of Foreign Affairs and Trade (DFAT) Country Information Report28 states: 3.193 ... While many sources believe the Population Law is loosening and some predict 'full liberalization of the fertility policy' in the near future, women reportedly continue to face coerced abortions and sterilisations. ... 3.194 ... While women in violation of the Population Law can face a moderate risk of official violence in the form of coerced abortion or sterilisation, not all women pregnant outside of policy will face this outcome...29 ... 3.203 Media reports that authorities have employed coercive practices (such as forced abortions, sterilisations or invasive medical inspections) in order to [en]force compliance with family planning policies. International NGO reports suggests the incidence of coercive practices has reduced since the introduction of the two-child policy. ... DFAT notes reliable data on the frequency of coerced or forced abortions or sterilisations is not available.30 [67] Freedom House also states that, although less common than in the past, forced abortions and sterilizations continued to occur.31 [68] An RIR of the IRB refers to interpretation and implementation of the policy varying enormously across China.32 Another RIR33 refers to the 2018 CECC report as stating that official speeches and government reports from provinces across China, including Guangdong, continued to promote the implementation of harsh and invasive family planning measures.34 [69] Another RIR35 states that information on the retroactive enforcement of the one-child policy for individuals with previously-issued sterilization notices could not be found among the sources consulted.36 The RIR refers to a senior scientist at the University of Wisconsin-Madison who has conducted research on China's family planning policy, indicating that parents who had a second child before implementation of the two-child policy in 2016 would still be punished. The RIR notes that there is no explicit document which directs the retroactive enforcement of the one-child policy. The RIR refers to there being no national guideline on how local authorities should treat a second child born one to two years before the implementation of the two-child policy. The Deputy Director of the National Health and Family Planning Commission states that, in cases where the government has already made the decision to fine, then it should collect the fine, however, if the decision has not been made yet, the local government can judge by itself.37 [70] An RIR38 quotes the Red Star News as stating that if the birth of a second child happened "'before the official launch of the new [two-child] policy, but ... in conformity with the new population policy,' and 'before the amendments to the local legislation, it had indeed violated regulations at that time and the illegality does exist.'"39 The RIR refers to two court cases of villagers in Guangzhou, Guangdong continuing to be penalized for the birth of additional children before the implementation of the two-child policy and states that, "[i]n both cases, the Sub-District Office argued that the over-quota births had happened before the implementation of the two-child policy and therefore penalties still applied due to the 'non-retroactive principle in law.'"40 [71] The above-noted country conditions evidence indicates that the 2016 changes to the family planning policy are not applied retroactively and that Chinese authorities continue to implement harsh and invasive family planning measures, including forced sterilizations. Considering the Principal Appellant's outstanding ligation notice, which I have found to be genuine on a balance of probabilities, I find that the evidence establishes that there is a serious possibility that the Principal Appellant faces a risk of sterilization upon return to China. The repercussions the Associate Appellant faces cumulatively amount to persecution [72] As I have found the Principal Appellant credible regarding her allegations of violating the family planning policy, I have considered repercussions that the Associate Appellant may experience upon return to China. I have reviewed the Appellants' post-hearing submissions.41 [73] The Appellants refer to the treatment of their family members in China due to the violation of the family planning policy as evidence that the Associate Appellant would be mistreated. They point to the letter from the Principal Appellant's brother42 which states that authorities regularly visited his home and harassed him, which led to the family moving from their home. The Principal Appellant's amended BOC narrative states that in 2017, government institutions were advised not to do business with her brother's company. The Principal Appellant's amended BOC narrative also refers to government officials harassing her mother.43 [74] The Appellants refer to the country conditions evidence as stating that those found to have helped a person evade family planning laws could face punitive measures, such as onerous fines or job loss. They refer to relatives of unsterilized women or couples with unapproved births being subjected to high fines, job dismissal, reduced government benefits and occasionally detention. They refer to a situation in Guangdong in which a child that was born within the family planning policy was denied a hukou because his mother did not have an IUD fitted after his birth. [75] The Appellants submit that the Associate Appellant was already expelled from school and has been advised that she can no longer attend. They refer to the Associate Appellant not being able to obtain a hukou and being registered on the Principal Appellant's hukou. They point out that, without a hukou, the Associate Appellant cannot receive an education, public health or government services, as well as get married, find a job or open a bank account.44 [76] The Appellants also refer to the Associate Appellant's Residence Identification Card (RIC) having expired and the need for renewal, which requires approval of the Public Security Bureau. The Appellants state that the Associate Appellant is likely to be denied an RIC or that, in applying, her existence and contraventions will come to the attention of the Chinese authorities. They refer to the importance of the RIC in applying for various registration such as elections, marriage, hukou, school enrolment, entry and exit permits, social insurance, personal credit and bank remittances. [77] The Appellants refer to the negative impact that the Associate Appellant's link to the Principal Appellant will have on her social credit score. [78] I accept, on a balance of probabilities, that, as a result of the Principal Appellant's violation of the family planning policy, the Associate Appellant will be unable to renew her RIC and will have difficulties as she is on the Principal Appellant's hukou. Considering the extensive impact of not having an RIC and hukou in China, the problems that the Appellants' other family members in China have faced and the evidence regarding potential punitive measures for relatives of people who have violated the family planning policy, I find that such repercussions cumulatively amount to persecution. No state protection or internal flight alternative [79] As the state is the agent of persecution, there is no state protection or internal flight alternative available to the Appellants in China. CONCLUSION [80] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees pursuant to paragraph 111(1)(b) of the IRPA. (signed) L. Krajcovic L. Krajcovic April 26, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 13, at p. 55. 2 Exhibit P-3, Further Submissions, January 3, 2021. 3 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, at s. 110(6). 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at paras. 70, 103. 5 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, Effective date: November 13, 1996. 6 Exhibit RPD-1, RPD Record, Exhibit 14, at p. 421. 7 Ibid., at p. 438. 8 Ibid., at p. 421. 9 Exhibit RPD-1, RPD Record, Exhibit 15, at p. 461. 10 Ibid., at p. 471. 11 Ibid., at p. 473. 12 Ibid., at p. 474. 13 Ibid., at p. 471. 14 Ibid., at p. 470. 15 Ibid., at p. 472. 16 Ibid., at p. 743. 17 Ibid., at p. 746. 18 Ibid., at p. 747. 19 Ibid., at p. 476. 20 Ibid., at p. 503. 21 Ibid. 22 National Documentation Package (NDP) for China (October 30, 2020), item 5.4: ?Treatment of "illegal" or "black" children born outside the family planning policy; whether unregistered children are denied access to education, health care and other services; information on punitive measures taken against parents who violated family planning policy before and/or after policy changes effective January 2016 (2013-September 2016), Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) CHN105636.E, 20 October 2016. 23 Ibid., at p. 2. 24 Ibid., at p. 3. 25 NDP for China (October 30, 2020), item 5.5: ?Whether Family Planning authorities, including in Guangdong and Fujian provinces, enforce the two-child policy through forced abortions, sterilization, and other birth control methods; information on measures taken against parents who fail to register additional children, including fines (replaces CHN106235 of 1 October 2019), IRB, RIR CHN106400.E. 18 December 2019, at p. 3. 26 NDP for China (October 30, 2020), item 2.3: ?Congressional-Executive Commission on China Annual Report 2019, United States: Congressional-Executive Commission on China, 18 November 2019. 27 Ibid., at p. 125. 28 NDP for China (October 30, 2020), item 1.10: ?DFAT Country Information Report: People's Republic of China, Australia. Department of Foreign Affairs and Trade, 3 October 2019. 29 Ibid., at p. 50. 30 Ibid., at pp. 51-52. 31 NDP for China (October 30, 2020), item 5.5, supra, endnote 25, at p. 4. 32 NDP for China (October 30, 2020), item 5.16: ? Family planning regulations and their implementation, including applying to have a third child, both nationally and provincially, particularly in Fujian and Guangdong (2017-October 2020), IRB, RIR CHN200325.E, 8 October 2020, at p. 4. 33 NDP for China (October 30, 2020), item 5.5, supra, endnote 25. 34 Ibid., at p. 2. 35 NDP for China (October 30, 2020), item 5.1: ?Retroactive enforcement of the one-child policy, including those who had previously been issued a sterilization notice (2015-June 2020), IRB, RIR CHN200232.E, 3 July 2020. 36 Ibid., at p. 3. 37 Ibid., at p. 1. 38 NDP for China (October 30, 2020), item 5.7: ?Effects of the implementation of the Two-Child Family Planning Policy on children born outside the country and their parents, including access to social services and benefits, particularly in Guangdong, Fujian, Hebei, and Liaoning; punitive measures taken against parents who return from abroad after having children in violation of family planning policies, including whether the Two-Child Family Planning Policy is being applied retroactively (2017-October 2018) IRB, RIR CHN106165.E, 18 October 2018. 39 Ibid., at p. 5. 40 Ibid., at p. 7. 41 Exhibit RPD-2, Supplementary Record, June 26, 2020; Exhibit RPD-3, Supplementary Record, February 26, 2021. 42 Exhibit RPD-1, RPD Record, Exhibit 18, at p. 697. 43 Exhibit RPD-1, RPD Record, Exhibit 13, at p. 59 44 Exhibit P-3, Further Submissions, January 3, 2021, at p 13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-35490 TB9-35491 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français